Caldwell v. State

• Decision Date: 23 July 1901
• Parties: CALDWELL v. STATE.
• Court: Florida Supreme Court

30 So. 814

43 Fla. 545

CALDWELL v. STATE.

Florida Supreme Court

July 23, 1901

Error to circuit court, Suwannee county; John F. White, Judge.

Joe Caldwell was convicted of an illegal sale of liquor, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A motion in arrest of judgment on the ground of the insufficiency of the indictment must be exhibited to the appellate court by the record proper, and not by bill of exceptions.

2. The courts take judicial knowledge, as it is a matter of common knowledge, that wine is intoxicating.

3. Acts 1899, c. 4746, prohibiting the sale of spirituous, vinous, or malt liquors in localities where the local option provision of the constitution has been put in operation, contemplates that such liquors shall be intoxicating, and, where an indictment charges an unlawful sale of wine, the court may instruct the jury as matter of law that wine is intoxicating and, as a consequence, no harm can come to the accused by permitting a witness to state that the wine sold was intoxicating.

4. Under an indictment charging an unlawful sale of wine under chapter 4746, Acts 1899, it is competent to prove the sale by showing that a pretended sale of a different article was a subterfuge and sham for the sale of the wine.

5. When a demurrant to evidence makes no offer to reduce the evidence to a statement on the record of the facts proven or tended to be proven, the court may disregard the demurrer entirely but, if the court overrules such a demurrer, and the only evidence exhibited to the appellate court is that found in a regular bill of exceptions, and it is sufficient to sustain the verdict rendered in the case, the demurrant has no ground of complaint.

COUNSEL Blackwell & Johnson, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

Plaintiff in error was tried and convicted at a special term of the Suwannee circuit court held in March, 1901, on an indictment found at the regular fall term of the court in November 1900, alleging (formal parts omitted) that, pursuant to the provisions of an act to provide for the proper enforcement of the provisions of article 19 of the constitution of 1885, an election was held in said county (Suwannee) on the 27th day of August, A. D. 1889, to decide whether the sale of intoxicating liquors, wines, and beer should be prohibited therein, and at such election a majority of the votes cast was against such sale in said county, and thereafter, on the 28th day of July, A. D. 1900, in Suwannee county and state of Florida, one Joe Caldwell did then and there unlawfully sell wine, contrary to the statute in such cases made and provided.

No attack was made on the indictment before trial and the record proper does not show that any was made in the court below.

It is assigned as error, and insisted on here, that the court erred in overruling a motion in arrest of judgment on grounds questioning the sufficiency of the indictment, but the only evidence we have of such a motion is found in the bill of exceptions, and we cannot consider it. It is the rule in this court that motions in arrest of judgment reach only such defects as are apparent upon the record proper. Golding v. State, 31 Fla. 262, 12 So. 525; Smith v. State, 29 Fla. 408, 10 So. 894; Bacon v. State, 22 Fla. 51; Jordan v. State, Id. 528. All matters appertaining to the record proper must be exhibited by it, and a bill of exceptions cannot be utilized to present them, unless it be by legislative direction. Lovett v. State, 29 Fla. 356, 11 So. 172; Brown v. State, 29 Fla. 543, 10 So. 736; Roberson v. State, 42 Fla. ----, 28 So. 424; Brown v. State, 42 Fla ----, 27 So. 869.

After proving the local option election in the county as alleged in the indictment, the state proved by a witness (H. A. Bleach) that he went to Caldwell's house on or about the 20th of July, 1900, and asked for wine; that defendant said he did not have any wine for sale, but did have some jewelry and handkerchiefs for sale, and that if witness would buy a quarter's worth he should have a quart of wine, or that defendant would give witness a quart of wine. Witness then picked out a small handkerchief, and paid 25 cents for it, and defendant measured out a quart of wine, and gave it to him, and that it was understood when payment was made on the handkerchief that witness was to have the wine. This occurred in Suwannee county, Fla. The state then asked the witness if the wine was intoxicating, and he answered, 'Yes.' The accused objected to the evidence in reference to the intoxicating quality of the wine, and moved to strike it out on the ground that the indictment did not allege the wine to be intoxicating, and also moved to exclude all of the testimony of the witness on the ground that it made a case under section 2633, Rev. St., and there was no provision in the local option law under article 19 of the constitution making it a crime to give wines or liquors with the sale of other articles. The adverse rulings of the court on these motions are presented as errors.

The sufficiency of the indictment, as we have seen, is not properly presented, and we should not pass upon it, provided it does not entirely fail to allege the crime under the statute. The first statutory provision to enforce the provisions of article 19 of the constitution of 1885 was chapter 3700, Laws 1887. In the Revised Statutes of 1892 chapter 3700 was made the basis of revision on this subject, and is found in sections 857 to 864, inclusive, pt. 1, tit. 11, c. 8, of said statutes. The penalty for violating the local option article when put in operation by proper vote was contained in section 2634 of the revision, but this section was attempted to be amended in 1897 (chapter 4551) in such a bungling way as to be almost meaningless. This latter act was entirely repealed in 1899 by chapter 4746, and it is under this act that this case is brought. It provides that 'whoever sells or causes to be sold any spirituous, vinous or malt liquors in any county or precinct which has voted against the sale of such liquors under the provisions of chapter 8, title 11, division 1, Revised Statutes of the State of Florida, shall be punished upon conviction thereof by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars,' with a proviso not necessary to give, and containing a repealing clause of all laws in conflict with it, and especially chapter 4551, Laws 1897. By the terms of the statute in force when this case was tried (chapter 4746), the sales prohibited are of spirituous, vinous, or malt liquors; and wine would, according to general knowledge, be included within the term 'vinous liquors.' Hatfield v. Com., 120 Pa. 395, 14 A. 151. The act of 1899, however, in...